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Gorstein and josh savalas. josh, we don t usually get these cases at this level. the law is fairly settled. what makes sarah palin s case against the new york times different? i think you have some conservative lawyers who believe they have a vehicle, or believed at one time they had a vehicle here to really challenge the basic presumption, joe, the basic actual malice standard so many of us have grown up with. that it is very, very hard if you are a public figure to recover any damages against a newspaper. you know, in the last three or four years you had justice thomas, you had justice gorsuch and some other federal judges say that they think that should be looked at again. so there is some momentum to do that. whether it is enough to actually make a serious run at it i m not sure, but these lawyers seem to think that it is in play. ....
Broader implications if palin was to prevail in this case. what would that mean not just for the new york times but the media industry at large. it doesn t matter if sarah palin prevails because whatever her legal burden is, practically speaking the damage to the new york times has already been done. the jury and the world has seen the inner workings of what the newspaper does when it is on a deadline. this is a universe that we re familiar with, crashing a deadline, but to regular lay people it might seem operating at too much of a break-neck speed to be careful. when in reality during the playback process, as josh can tell us about, the editor sends it back to the writer, and in this case there was a little bit of maybe someone should have read it a little more before it went out. but, look, that s the process. that s crashing a deadline. you know, my thought is i wonder if a jury will lay people might see this and say, geez, this was maybe not reckless but pretty ....
Darn close. it is a close call in that sense. it is a trial. anything can happen. but if you are just playing the odds, the new york times should be safe. however, it could potentially really damage if it goes up to the supreme court, and i do think this is a court that would take on this issue and would take on new york times v. sullivan. if you had asked me that two years ago i would say, no, right leaning justices are the opposite of activist justices. i no longer think that. i think it is a case they would be interested in taking if they had the opportunity. josh, let s talk about the media culture danny was talking about, how it changed over the past decades since this editorial was written. that s when what used to be the times , the wall street journal , other dailies, they would have time to sit back, research this, make sure they got it right. suddenly everybody was rushing for deadline, to get something online as quickly as possible. i can tell you on this show we ....